Below is the text upon which Dr. Ford based his remarks to a class at the George Washington University law school on March 12, 2014.

Let me start by thanking Professor Jonas for inviting me, and say that I’m looking forward to our discussion this evening. He told me that you have been studying the Nuclear Nonproliferation Treaty (NPT) as part of the curriculum for this class, and we thought it might be interesting to offer the perspective of someone who has both studied it as a scholar but also struggled with NPT issues as a diplomat.

To my eye, even apart from the importance of its subject matter, one of the reasons to be fascinated by the NPT is its perhaps unique status as an instrument to which essentially all the relevant players claim to be deeply committed even while they feud bitterly over what that actually means. Let’s look at its record.

Structure

But first, a word about the Treaty’s development and structure. The NPT has its origins in the so-called “Irish Resolution” adopted by the United Nations General Assembly in 1961 – at a time when most observers expected the number of countries possessing nuclear weapons to skyrocket in the near future. That Resolution called for the institution of a non-transfer obligation for weapons possessors and a non-acquisition obligation for non-possessors, and this eventually translated directly into Articles I and II of the NPT, the foundation of the Treaty as it was signed in 1968.

Nonproliferation was naturally the principal issue addressed by the Treaty, but it wasn’t the only point touched upon, and much of the NPT’s subsequent contentiousness in international diplomatic circles is related to how it dealt (or didn’t deal) with additional matters. One such ancillary issue was that of disarmament – namely, what was to become of those weapons that were already in the hands of some states, even if such tools did not proliferate further.

In the long-running NPT negotiations, some countries proposed establishing an express connection between the nonproliferation obligations of nuclear weapons non-possessors and requirements for disarmament by possessor states. The U.S. and Soviet negotiators, however – the lead drafters – insisted (along with some others) that these issues not be made reciprocally conditional, for fear that such linkage would prevent progress on either goal. Efforts to require particular disarmament steps as part of the NPT were thus rejected, and by at least 1965, it was understood that specific disarmament requirements would not be part of the Treaty. All that ended up in it was a call to pursue negotiations on disarmament – a provision that is now Article VI. The issue of what specifically to do about disarmament was thus explicitly put off for later. It haunts NPT diplomacy today.

Another important additional issue was that of peaceful uses of nuclear knowledge. With many countries committed to the idea of some kind of nuclear technology-sharing for peaceful purposes, a number of governments attempted to insert specific sharing requirements that would have obliged technology holders to give information and materials to non-possessors. These proposals, however, were also rejected. Although Article IV of the NPT did encourage peaceful uses and call for technology-sharing, its final language was somewhat ambiguous about what was actually contemplated. This, too, became an area of contention in subsequent debates.

Other issues of importance for how NPT issues resonate in international diplomacy to this day include the Treaty’s “have/have not” structure – with some rules applying to nuclear weapon states and others to non-nuclear weapon states – which gives rise to some resentment. In addition, there is the problem of what to do about countries such as India, Pakistan, and Israel, which did not sign the NPT but are today either known or presumed to possess nuclear weapons. The issue of these NPT “outliers” – joined, in 2003, alas, by North Korea – also bedevils nonproliferation diplomacy today.

A Survey of Proliferation and Rollback

What are we to make of how the Treaty has worked in practice? Any assessment of the NPT’s net impact upon the global security environment must be in part a debate about dogs that didn’t bark. While new nuclear weapons players have certainly emerged, the wholesale explosion of proliferation that was first predicted has not yet occurred, and NPT proponents frequently give the Treaty the credit for this. Since correlation does not imply causation, however, and we cannot really know what would have happened had the NPT not existed, it is hard to conclude this with enormous confidence. This is particularly true because it seems clear that other factors were involved as well, including some that may have exerted a more powerful effect in retarding proliferation than the mere existence of the Treaty.

During the Cold War, for instance, both superpowers had strong incentives to keep their allies in line, from a nonproliferation perspective, both in order to preserve their nuclear duopoly and to prevent the emergence of additional nuclear players whose behavior might prove destabilizing. The combination of U.S. pressure (making weapons acquisition less attractive) and formal or informal U.S. security guarantees (making it less necessary), for example, helped bring about the termination of nuclear weapons efforts in Sweden, Taiwan, and South Korea.

The United States also developed “nuclear sharing” policies whereby in time of war, forward-deployed U.S. weapons in Europe were to be turned over to selected NATO allies for delivery. This was in large part a nonproliferation policy, meant to reassure our allies about the credibility of nuclear use in response to Soviet attack and forestall those allies’ indigenous weapons development. Various factors – including not just such alliance pressures and incentives but also the cost and difficulty of fissile material production – helped to constrain proliferation independent of the NPT, both before and after it came into force.

It is hard to assess the relative contributions of such factors in comparison to whatever impact that the Treaty itself had in helping preventing the explosion of proliferation that had been expected. The NPT surely has played some role in making proliferation less prevalent than would otherwise have been the case. But precisely how much impact the existence of the NPT has had, relative to other factors, is harder to say.

There are several “transitional” cases of proliferation rollback occurring just at or after the end of the Cold War. South Africa dismantled its nuclear weapons in 1991, just prior to joining the NPT as a non-weapons state. While Treaty accession capped and codified this step, however, it appears to have been driven by factors unrelated to the NPT itself – not least, the desire of the white minority government there to get out of the nuclear weapons business before handing over power to the black nationalists of the African National Congress. In this sense, South Africa is principally a case of regime change as a deproliferation driver.

The relinquishment of nuclear weapons by several former Soviet republics also forms an ambiguous case, inasmuch as they had simply inherited weapons “stranded” on their soil by the breakup of the USSR, had not developed or acquired them “on their own” for any particular national purpose, and lacked the ability to maintain or perhaps even use them if desired. When these factors were coupled with generous offers of Western economic assistance, rollback occurred. But it is not clear that the NPT itself played a major role in this process, except insofar as joining the Treaty was regarded as a symbol of these republics’ post-Soviet normalization, and that accession was urged by Western donors as a condition for such support.

With regard to the end of the Argentine and Brazilian nuclear weapons programs, local circumstances – the dissolution of military juntas in both countries and the end of their military rivalry – seem to have played the decisive role, with the NPT itself having been most significant merely as a symbol of, and a way of codifying, moves that had already been undertaken for other reasons. Rollback of Iraq’s nuclear program took place by force of arms in 1991, and was enforced by intrusive sanctions and inspections until Coalition forces deposed Saddam Hussein in 2003. The NPT doesn’t seem to have played much role, however, except insofar as International Atomic Energy Agency (IAEA) inspectors were involved during the 1990s in trying to make sure Iraq was not still hiding a program.

It is all but impossible, of course, to say whether any other countries might have decided to move forward with nuclear weapons development – and have succeeded – had the NPT never been negotiated. In the known cases in which weapons programs were ended, NPT accession repeatedly played a role in symbolizing and codifying governments’ strategic decision to abandon nuclear weaponry, but there is little sign that the Treaty drove these outcomes in any significant sense. The NPT had a facilitating role, in other words, but local circumstances, especially those of domestic regime change and changes in perceived security threats, appear to have been much more important.

North Korea clearly put no stock in its nonproliferation undertakings, and was apparently in continuous violation of its nonproliferation commitments from the moment it undertook them. Its nuclear weapons program apparently began in the 1970s, and never really stopped, irrespective of NPT accession in 1985 and an IAEA safeguards agreement in 1992. The NPT regime did play a role in bringing North Korean cheating to light, insofar as it was IAEA inspectors who first revealed Pyongyang’s plutonium reprocessing plant. This positive impact, however, must be set against North Korea’s degree of success in using nonproliferation negotiations and repeated agreements with international partners as cover for its ongoing weapons work. Pyongyang’s negotiating tactics have, at times, been an effective way of forestalling diplomatic counter-mobilization and dividing foreign leaders against each other.

Rollback of Libya’s nuclear weapons program seems to have been driven by a combination of that sanctions-stricken regime’s desire for normalized relations with the Western world and Muammar Qaddafi’s personal fear of suffering the same fate as Saddam Hussein – as Qaddafi himself later indicated. The role of the NPT and its related institutions in these developments is ambiguous, but their impact was surely less than these geopolitical factors. Clearly, compliance with the Treaty meant essentially nothing to Qaddafi per se, and indeed the appearance of being a member in good standing – since IAEA inspectors never detected Libya’s clandestine nuclear work – may have helped allay foreign suspicions and create a false sense of security in the outside world. (Qaddafi had been suspected of illicit WMD work for years, but international worries principally concerned chemical weapons technology, not nuclear.)

On the other hand, once the Libyan program had been revealed, the IAEA played an important role in facilitating its relinquishment. The “cover” of Agency involvement in helping verify dismantlement lessened the political sting for the Libyans of turning over their nuclear materials, equipment, and weapons designs to U.S. officials, who whisked these things quickly out of the country. The existence of the NPT and the availability of the IAEA for this thus made Libyan proliferation rollback easier to implement, but this step actually occurred for reasons independent of the Treaty regime.

The future of Iran’s nuclear program is today still, at least notionally, up in the air: negotiations are underway on a supposedly “final” deal with Tehran. It is worth noting, however, that Iran has done all of its nuclear work to date – and engaged in years of denial, deception, safeguards violations, and evasion of IAEA inspectors – from within the NPT, claiming to be in perfect compliance all the while. So far, at least, the Iran case is therefore clearly not much of a success story for the NPT, though it is also true that IAEA inspectors have done a good job over the years, and particularly since 2009, in verifying at least the current state of Iran’s declared nuclear activities, and of asking pointed questions about evidence of continued clandestine work. Will the Iran case turn out to be a success story for the regime? We’ll see.

And then there is Syria, which secretly constructed a plutonium production reactor with assistance from North Korean technicians. This facility was bombed by Israeli warplanes in 2007, and there has been no publicly reported indication of Syrian nuclear work since that time. With respect to the NPT’s role, this is a pretty clear case, for the NPT and its related institutions seem to have had essentially no impact upon Syrian behavior, nor did they play any role in the rollback of Syria’s weapons program – which occurred at the hands of an NPT non-signatory for its own obvious reasons.

The Ancillary Issues

With regard to the ancillary issue of “peaceful uses,” there have certainly been significant developments in the post-Cold War era, notably the continued spread of nuclear power generation and the greatly lessened cost and difficulty of uranium enrichment – not least through a considerable expansion in access to such technology, thanks, among other things, to the A.Q. Khan proliferation network.

While the benefits of using nuclear energy are increasingly widespread, these developments are placing increasing stress on the NPT regime by making the weaponization “option” easier than ever. It is now clear that IAEA inspections are no panacea, and that significant risks can still remain irrespective of ostensible safeguards compliance by technology recipients. The prospect of regime “breakout” is all but impossible to preclude, or perhaps even detect in a timely manner, and this imperils the sustainability of nonproliferation norms in the future, as well as strategic stability in a world of many “option”-possessing states.

To the extent that technology proliferation was going to occur anyway, the NPT has done some good by obliging non-weapons-possessor States Party to maintain safeguards agreements. As I noted, however, the mere existence of safeguards is clearly not always effective in preventing clandestine nuclear work. This is why, for instance, the IAEA has been promoting the so-called “Additional Protocol” (AP) to help reduce the likelihood of clandestine violations. The AP has proven somewhat controversial, however, and some countries haven’t brought it into force. The IAEA itself, moreover, has recognized that even the AP fails to provide investigative authorities sufficient to cope with deception and evasion by a determined host government.

Unfortunately, especially given the uncertainties surrounding the ability of IAEA safeguards to provide adequate warning of diversion, the NPT seems to have played a role in encouraging the proliferation – under the banner of “peaceful use” – of some of the very technologies that are making proliferation challenges so acute. While Article IV could easily be read to endorse sharing benefits such as the use and production of nuclear power itself, many people interpret it as endorsing a “right” to produce fissile material. The debate between these positions seems to be being lost by proponents of restraint, and the emerging conventional wisdom today is that there is indeed such a “right” irrespective of how effective safeguards would be in precluding or providing timely warning of diversion.

The NPT’s role in encouraging developments antithetical to the cause of nonproliferation must therefore be set against whatever positive impact the Treaty has had in helping ensure that civil nuclear programs are placed under IAEA safeguards in the first place. It is becoming increasingly clear that neither the nonproliferation regime as a whole nor our understandings of deterrence and crisis stability presently offer a coherent answer to the challenges of international peace and security in a world in which the technical option of developing nuclear weaponry on short notice has proliferated widely. This is a very troubling issue for the future.

With regard to disarmament, although this topic remains a very contentious topic in NPT fora, it is surely the arena in which the most progress has been made. Since the end of the Cold War, the great powers’ nuclear stockpiles have plummeted precipitously. As of 2010, for example, the United States had cut back its arsenal 84 percent from its 1967 peak. To the extent that nuclear disarmament is indeed an objective of the NPT, this must surely count as extraordinary progress.

The Treaty, however, cannot claim credit for these reductions, which resulted from the relaxation of tensions between the superpowers and the end of the Cold War. As with so many of the cases of proliferation rollback I mentioned earlier, therefore, the key factor here seems to have been a combination of domestic regime change (in the USSR) and alterations in strategic circumstances (between Washington and Moscow), rather than any sort of political momentum, legal obligation, or normative suasion rooted in treaty-based international institutionalism.

The politics of the disarmament issue in NPT fora remain complicated. While the NPT’s relative emptiness of disarmament content is certainly clear enough as a matter of law, the politics of the issue are complex. One of the ways in which the Treaty’s drafters put off the issue of disarmament was to encourage States Party to use the five-year NPT “review cycle” as a forum for assessing how well the Treaty was contributing to the broad purposes envisioned for it – including its hoped-for role as a step towards nuclear disarmament.

At the same time as the 1995 Review Conference extended the Treaty to operate in perpetuity, moreover, it also declared that it was “important” for the realization of Article VI’s principles that certain specific steps be taken. Legally speaking, of course, such a mere political declaration adds essentially nothing. But some states today insist that whatever the legal situation, the Treat’s indefinite extension in 1995 was made on the basis of a “political bargain” pursuant to which this extension is to be repaid by accelerated disarmament progress.

But present-day strategic realities – both the rise of a powerful China increasingly keen on overawing its neighbors and the re-emergence of the overtly aggressive Moscow symbolized most acutely by the recent Crimean Anschluss – suggest that progress in nuclear reductions may well not speed up, or perhaps even continue at all. Moreover, it may well be that beyond a certain point, the goals of nonproliferation and further nuclear disarmament ultimately work at cross purposes, inasmuch as too great a reduction in the remaining U.S. nuclear arsenal could erode the “extended nuclear deterrence” it provides to its allies, potentially prompting one or more of them to undertake indigenous nuclear weaponization. One should expect that the contentiousness of disarmament in NPT fora will increase in the years ahead.

Present-DayControversies

What should we thus make of the NPT’s overall track record? When considered against a hypothetical alternative world in which no such treaty had ever been negotiated, it is all but certain that the NPT has indeed helped. What is less clear is the extent to which it has contributed to slowing nuclear weapons proliferation, since many other factors have clearly also been involved. To my eye, the NPT’s relative contribution has been generally positive, but it has been mixed – and its relative contributions are sometimes rather oversold.

A regime such as the NPT is capable of influencing behavior in part by helping establish, codify, and symbolize norms and policy priorities in ways supportive of the Treaty’s goals. I would argue that the Treaty has had a positive impact in shaping the perceived range of choices available to proliferators, and in shaping the behavior of third parties. In more concrete terms, moreover, by obliging non-possessor States Party to maintain IAEA safeguards agreements, the NPT has also increased the cost and difficulty of violations. These are certainly important factors conducive to nonproliferation.

Yet the NPT’s is not an unambiguously good story. Part of the reason that key proliferators have sought to delay an overt break with the nonproliferation regime may be precisely that making a show of false compliance – which is unfortunately still possible even where safeguards apply – can help protect proliferators from adverse consequences even while they continue to pursue nuclear weapons. The very existence of a legally-binding treaty framework, moreover, focuses attention upon the binary question of “compliance” versus “noncompliance,” helping make it more difficult to persuade third parties to support international pressures against a proliferator in the absence of some kind of “official” or unquestionably definitive finding that a violation has occurred.

Yet there is no international mechanism for finding a country in noncompliance with the NPT itself, and though the IAEA has authority to refer safeguards violators to the U.N. Security Council, even this can be a slow and cumbersome process. Nor is it realistic to expect that utterly unambiguous “proof” will be available in any but the rarest of cases. To the degree that nuclear weapons programs can be conducted out of the view of IAEA inspectors, continued overtly under the guise of “peaceful” activities, and/or shrouded in a cloud of evidentiary ambiguity, therefore, the pretense of NPT compliance can be a very effective “cover” for a clever proliferator, turning the regime’s own institutionalism to the advantage of a scofflaw.

I’m not arguing that these negative factors outweigh the positive impact of the NPT. They must be remembered, however, for they are not negligible. It must also be noted that even though the net impact of the Treaty is surely positive, the historical record does not permit strong assertions about the relative weight of the NPT and its associated institutions in dissuading states that might otherwise have opted to pursue nuclear weaponry, in inducing violators to return to compliance, or in decisively turning third parties against troublemakers. The record suggests that while it probably influenced some decisions to some degree, the NPT has not been hugely important in shaping strategic choices, especially those of actual or would-be proliferators. Even with respect to third parties, reactions to proliferation challenges seem more tied to their assessments of concrete local, regional, and geopolitical implications than to their judgments about compliance or noncompliance with any particular legal regime.

Conclusion

So let’s sum things up. The NPT was born of expediency during the Cold War, in an attempt to help avoid an expected crisis of ballooning proliferation. It attempted to address the spread of weaponry, but avoided taking clear positions on other issues of importance to those involved in the negotiations – in particular, disarmament and peaceful nuclear uses. The NPT was predicated upon the reasonable supposition that without addressing the problem of horizontal spread, issues such as disarmament and peaceful use could never be satisfactorily handled, if indeed they ever could be at all. Nonproliferation was both a conceptual and a practical sine qua non for real progress on other fronts – and indeed for peace and security in its own right – but the instrument was neither intended nor expected to represent a “solution” for the full spectrum of nuclear weapons-related international security challenges. Nor does proliferation itself seem to be in any danger of actually stopping: having a regime that merely slows the spread of nuclear weapons is certainly better than not having one, but it suggests the improbability of definitive progress on essentially any issue touched upon in the Treaty.

This is one of the reasons that despite its positive impact over the years, the NPT has felt so unsatisfactory to so many participants. A pessimist might conclude simply that the Treaty is poorly suited to the contemporary world, not grounded in any strong policy-relevant consensus, and neither well-designed nor institutionally equipped for long-term coherence or success. An optimist might retort that NPT has played a role in helping forestall enormous problems by slowing the spread of nuclear weaponry, and that even if its role to date has been only a modest one, moreover, any step away from the Treaty’s codification of the principles of non-dissemination and non-acquisition would be very dangerous.

Both of these accounts would contain much truth. The NPT has been beneficial, but it has not helped as much as many supporters claim, it has real flaws, and no one has any intelligible vision of a “solution” for any of the issues it addresses in its provisional way. Yet no one has offered any feasible replacement for this troubled instrument, leaving it, one might say – with apologies to Churchill’s famous comment about democracy – as the worst way to address nuclear security challenges except for all the other possibilities. The NPT has a painfully mixed record, in other words, but we need it still.

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